[CPEO-BIF] Reporting Contamination

["Schnapf, Lawrence" <Lawrence.Schnapf@srz.com>]

Title: Reporting Contamination

In response to Bill Walsh's latest email:

It is my view that it is the "complexity" of the CERCLA reporting requirements is what has in part led us to the problems we continue to face today with "unknown" contaminated sites. I also think the complexity of the CERCLA reporting obligations has contributed to the inventory of brownfield sites. We should not use the complexity as an excuse to continue the status quo.

My proposal is to create a simpler framework to address the problems we face today which is the legacy sites and not the mismanagement scenarios that were common in the 1970s. I propose that we close this loophole about how much was discharged where over a period of time and replace it with much simplier approach: If contamination is discovered above an applicable soil or groundwater standard (which is afterall what we are concerned about), then that contamination must be reported.

Once this information is in the public domain, decisions can be made as to who is responsible for cleanup. It is quite possible that many current landowners or prospective purchasers could discover historical contamination for which they may be able to assert a liability defense. Moreover, I believe that the disclosure should be the pro quid quo for the liability relief.

Common law disclosure obligations for latent defects in property such as soil or groundwater contamination have not been very effective at incentivizing owners to disclose contamination. Instead of relying on outdated and archaic approaches, we should adopt new rules for the problems we face today.   

Larry
Lawrence Schnapf
Schulte Roth & Zabel
919 Third Avenue
New York, NY 10022
212-756-2205 (phone)
212-593-5955 (fax)

P Please consider the environment before printing this e-mail. 

 

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